GROUNDS FOR RELIEF
THE TRIAL COURT LACKED COMPETENT JURISDICTION TO ADJUDICATE THE JURY VERDICT IN THIS CASE BECAUSE THEY JURY WAS NOT RANDOMLY AND LAWFULLY SELECTED AND THEREFORE WAS NOT A JURY WITHIN THE EYES OF THE LAW UNDER RCW 2.36.065 AND THE CONSTITUTIONS OF THE STATE OF WASHINGTON AND UNITED STATES.
In this case they jury was not lawfully or randomly selected therefore they jury verdict returned is null and void for lack of procedural due process, failure to comply with the mandates of RCW 2.36.065 and other State of Washington statutory law, violations of both State and Federal Constitutions, and the decisional law set forth below, based on the attached Exhibits (A) though (L) of which are hereby incorporated herein by reference.
As clearly and conclusively evidenced by Exhibit (A), the trial judge knew that the mandates of RCW 2.36.065 were required to be complied with, informing he jury that an electronic recording was being made of all proceedings; and the trial judge was also aware that he was falsely informing the jury that the jury had been randomly selected; where as the entire court record has been examined and there was no random selected in this case, see State v. Njonge, 181 Wn.2d 546, 556, 334 P.3d 1068 (“We cannot presume the existence of fact to which the record is silent”), cert. Denied 135 S.Ct. 880 (2014); State v. Slert, 169 Wn.App. 766, 282 P.3d 101 (2012) (“Because the jury selection process begins when prospective jurors are sworn and given questionnaires to complete, such proceedings should be conducted on the record to facilitate appellate review”); Ex Parte Virginia, 100 U.S. 339, 25 L.Ed.2d 676 (1880) (The trial judge, prosecutor, defense attorney and other judicial participants all violated criminal law by unlawful selecting the jury”); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (A criminal defendant has real party in interest and third party standing of the public regarding unlawful and/or unconstitutional conduct by judicial participants during the jury selection process).
Attached Exhibits (A) through (L) provide overwhelming evidence that the defense attorney, prosecutor, and trial judge entered into an unlawful agreement to deprive Petitioner of his state and federal civil and criminal statutory rights and the protections afforded under the State and Federal Constitutions; resulting in actual conflicts of interests by vehicle of judicial misconduct, proprietorial misconduct, and defense attorney misconduct, none of which can be validly waived by any action and/or inaction be petitioner, see:
EXHIBIT (A): The jury was not lawfully or randomly selected in violation of civil and criminal law.
EXHIBIT (B): “JUROR NUMBERS & VOIR DIRE JULY 2, 2008” Encompassing the following analysis, “(35 out of 46 were women); (36 Jurors were numbered between #6003 and #6546); (5 Jurors were between #5195 and #5305); (1 Juror was numbered #4237); and (4 Jurors were numbered #1490, #1601, #1738, #1999)”; whereas with such disparity in Juror Badge Numbers, there could not have been a random selection.
EXHIBIT (C ): shows that there was three separate Trail Juror Panels because two alternate jurors replaced two jurors after jurors began deliberations.
EXHIBIT (D): is a two page document listing all the “JURORS WHO HAVE TIES TO CRIMINAL JUSTICE SYSTEM,” evidencing that under a statistical analysis, that percentage of society would not have ties to the criminal justice system.
EXHIBIT (E): is a three page document listing “HOW MANY HAVE SAT ON A JURY BEFORE,” evidencing grave potential of professional jurors being recycled.
EXHIBIT (F): is a one page document identifying jurors who had experienced “CRIMINAL JUSTICE AND MOCK TRIAL EXPERIENCE,” evidencing grave potential for bias in favor of prosecution.
EXHIBIT (G): is a one page document of “UNIDENTIFIED JURORS TRANSCRIPT EXCERPTS,” depriving petitioner of meaningful challenge by statistical analysis regarding random selection of jury.
EXHIBIT (H): is a three page document entitled “JURORS STRUCK BY DEFENSE PEREMPTORY CHALLENGES,” for purpose of comparative analysis with those juror left on the jury.
EXHIBITS (I) though (L): are transcript excerpts of those jurors who ended up serving as trial jurors for purpose of comparative analysis with those who were dismissed for cause and dismissed during the peremptory challenge process.
When as in this case, the jury was not lawfully of randomly selected, a jurisdictional defect not subject to procedural bar or waiver is present, cf., Kelly v. U.S., 29 P.3d 1107 (7th Cir. 1994) (“The implication of all of this is that questions about the court’s jurisdiction cannot be waived…and as a result partied can raise jurisdictional defects at any time…Because the jurisdiction cannot be procedurally defaulted in the first place, it is therefore a non sequitur to suggest that a procedural default cannot be overcome because the defendant has not made an adequate showing of cause…because we are here dealing with a jurisdictional question”).
RANDOM AND LAWFUL JURY SELECTION REQUIREMENTS
Brady v. Fibreboard Corp., 71 Wn.App. 280, 857 P.2d 1094 (1993) (“An excusal procedure in which a judge, prior to trial, eliminates potential juror by independently reviewing jury questionnaires materially interferes with the randomness of selecting a jury panel and is the functional equivalent of granting a challenge for cause on grounds of actual bias. This elimination procedure violated statutory requirements for random jury selection and procedures governing challenges for cause and is presumptively prejudicial”)
RCW 2.36.065. Judges to ensure random selection description of process.
It shall be the duty of the judges of the superior court to ensure continued random selection of the master jury list and jury panels, which shall be done without regard to whether a person’s name originally appeared on the list of registered voters, or on the list of licensed drivers and identicard holders, or both. The judges shall review the process from time to time and all shall cause to be kept on file with the county clerk a description of the jury selection process. Any person who desires may inspect this description in said office.
Nothing in this chapter shall be construed as requiring uniform equipment of method throughout the State, so long as fair and random selection of the master jury list and jury panels is achieved.
Ex Parte Virginia, 100 U.S. 339, 25 L.Ed.2d 676 (1880) (“The act of defendant, in selecting jurors, was a ministerial, not a judicial act; and being charged with the performance of that duty, although he derived his authority for the State, he was bound, in the discharge of his duties, to obey the Federal Constitution and the laws passed in pursuance thereof”)
Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (“The jury acts as a vital check against wrongful exercise of power by the State and its prosecutors…Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethic, racial, or political prejudice… The composition of the trier of fact itself is called in question, and the irregularity may pervade all the proceedings that follow. The purpose of the jury system to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset”)
Roche Fruit Co. v. Northern Pac. Ry., 82 Wash. 284, 144 P.32 (1914):
A litigant is entitled to have his case submitted to a jury selected in the manner required by law; and further, that, if the selection is not made substantially in the manner required by law, an error may be claimed without showing prejudice, which will be presumed. But it will only be presumed when there has been a material departure from the statute.
State v. Tingdale, 117 Wn.2d 595, 817 P.2d 850 (1991)(“Because the trial court’s practice of jury selection constitutes a material departure from the statue, prejudice is presumed in this case”)
State v. Tingdale, 117 Wn.2d 595, 817 P.2d 850 (1991):
In State v. Phillips, 65 Wash. 324, 118 P.43 (1911), we held it is not grounds for exception that a qualified juror was rejected on insufficient grounds, unless “through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created.” 65 Wash. At 326 (quoting 1 S. Thompson, Trials &120 (1912)). Under Phillips, prejudice exist in this case. As a result of the trial court’s rejection of these jurors, qualified jurors were rejected, and petitioner was forced to accept other, possibly “unqualified”, jurors (namely, the friend of the sheriff). Had there been persons acquainted with both parties on the panel, perhaps a more “balanced” (impartial) jury would have resulted. The jury selection process in the present case is a material departure from RCW 2.36 and prejudice is presumed.
Pena-Rodriguez v. Colorado, (No. 15-606) _, U.S. _,_ S.Ct. _,_ L.Ed.2d _ (2017):
The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people. In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty.
IMPROPER JURY SELECTION PRESUMPTION OF PREJUDICE
Brady v. Fiberboard Corp., 71 Wn.App. 280, 857 P.2d 1094 (1993):
When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed. Tingdale, 117 Wn.2d at 600, 602; Roche Fruit Co. v. Northern Pac. Ry., 18 Wn.2d 484, 487, 139 P.2d 714 (1943). Here, the violations were material, see Tingdale, 117 Wn.2d at 02 (improperly excusing three jurors constituted material violation of statutory procedures), and a new trial must be granted.
State v. Tingdale, 117 Wn.2d 595, 817 P.2d 850 (1991):
Where the selection process is in substantial compliance with the statutes, the defendant must show prejudice. If there has been a material departure from the statutes, prejudice will be presumed. Roche Fruit Co. v. Norther Pac. Ry., 18 Wn.2d 484, 139 P.2d 714 (1943).
The trial judge’s ruling in this case was not in substantial compliance with the statute. A randomly selected jury is a right provided by statute and is based on the Legislature’s policy of providing an impartial jury. See State ex rel. Murphy v. Superior Court, 82 Wash. 284, 286, 144 P.32 (1914).
In State ex rel Murphy, the defendant was indicted by grand jury. The jury was selected as follows: 78 names were drawn for the jury list, some could not be found, some were exempt, some disqualified and some excused. The judge then selected 17 jurors to serve. The remainder were excused…The court found the selection process was in violation of the law and quashed the indictment, reasoning: “to approve the method adopted by the court would be to permit a judge, if he so willed, to provide a grand jury of own choosing in every case under color of law… No cases are cited to sustain a practice so fraught with possibilities.” 82 Wash. At 287-88. Similarly, in the present case, the practice allows the judge, and even the clerk, to assemble a jury panel of their own choosing. This practice violated the statutorily required element of chance and calls into doubt the impartiality of the jury selected…In the present case the trial judge approved the dismissal of the tree jurors. The court had no factual basis on which to base a finding of actual or imputed bias on the part of at least two jurors. There is nothing in the record to establish these jurors could not try the case impartially and without prejudice.